Unanswered question marks in Shaked’s legal ‘revolution’ - analysis

Israel might be able to get a respite with the Trump administration’s opposition to the ICC, but what happens with the next US president?

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April 8, 2019 03:35
Ayelet Shaked March 18, 2019 (Courtesy)

Ayelet Shaked March 18, 2019 (Courtesy). (photo credit: Courtesy)

 
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It has been hard to keep up with Justice Minister Ayelet Shaked’s flurry of proposals for her legal revolution.

The latest came last week when she appeared to call for house demolitions of Palestinians even before they have committed murder.

As with many of her other recent-hastily tossed out proposals on major controversial issues, she did not give the standard detail which she is known for during non-election season.

The Jerusalem Post has contacted her office numerous times regarding the following list of issues without getting promised responses.

Was she proposing to demolish houses of Palestinians who have committed no crimes based on a “Minority Report” style analysis of what someone posted on social media to show the likelihood that they would have committed a crime?

Was she proposing to demolish houses of Palestinians who are indicted for conspiracy to commit murder when caught after having bought weapons and assembled a terror attack plan, but before they carry it out?

Or did she misspeak and was she simply trying to widen the category of Palestinian terrorists’ houses which get demolished? In that case, maybe she was copying MK Avi Dichter’s position that Palestinian houses should be demolished in cases of attempted stabbings and shootings which wounded, but which did not succeed in killing, the terrorist’s target.

In the same appearance last week, Shaked complained of “mishpatizatzia” (over-legalization) of IDF conduct in dealing with conflict with the Palestinians.

Shaked correctly noted that one of the reasons that the IDF has become more careful since 2009 in using force in low-grade conflict situations is because of pressure from the International Criminal Court in The Hague.

Less clear was her proposal to replace the current approach to cope with the potential threat of ICC indictments and international arrest warrants against Israeli war decision-makers and IDF soldiers. Some 125 countries, including members of the EU, are treaty-bound by ICC arrest warrants.

Israel’s current approach is to push the envelope on what international law of war appears to permit but to stay within certain limits and interpretations which it believes will keep the ICC from getting involved.

If Israel takes an even more aggressive approach to using force which even the US army lawyers would not back and is not recognized by any international legal body, how would Shaked deal with the ICC? Israel might be able to get a respite with the Trump administration’s opposition to the ICC, but what happens with the next US president?

It was also unclear on what basis she accused former chief justice Aharon Barak of responsibility for the IDF’s more restrictive rules of engagement since the major change has occurred since 2009, long after Barak’s retirement.

Further, a 2014 Institute for National Security Studies journal article titled “Lawyers in war: Who needs them?”, by academic Ziv Bohrer notes that during the 1948-1949 War of Independence – with an IDF of some 70,000 soldiers – there were 2,424 courts martial, with an average of 400 cases per month. He said this shows that, even in Israel’s first war, lawyers and judges were heavily involved in regulating the army, “and yet Israel still managed to win!”

Shaked’s statements that Barak caused the Basic Law legal revolution are accurate, but in the arena of the IDF there is no real evidence that he held the army back. In fact, he issued the initial decision permitting targeted killings.


Earlier in election season, Shaked avoided answering questions about whether Prime Minister Benjamin Netanyahu’s attempt to fire his office’s legal adviser should change her view that legal advisers should become political appointments. Netanyahu’s legal adviser happens to have provided negative information about him and Sara to police when subpoenaed.

Under the current system, legal advisers of ministries answer to Attorney-General Avichai Mandelblit. The attorney-general blocked what appeared to be an attempt by Netanyahu to fire his legal adviser in retaliation for her being truthful to police about some of his and Sara’s conduct in the legal cases they face.

If Shaked’s bill had been in effect to give ministers power over hiring their legal advisers, it is possible that Netanyahu could have fired his adviser without any oversight.

Another question is where she and New Right Co-Party leader Naftali Bennett stand on the treatment of the Druze community (they are essentially omitted) by the Jewish Nation-State Law which was passed as a Basic Law having quasi-constitutional status.

Long before elections, Bennett was the first in the government to admit that leaving out some special mention of the Druze community was a mistake or an oversight.

However, when Blue and White leader Benny Gantz made one of his first public appearances in the election season calling for an amendment to the Jewish Nation-State Law to secure the Druze community’s special status, Shaked was one of the first to lash out and attack him as left-wing.

Questioned about the seeming discrepancy, a spokesman for Shaked said Gantz was wrong to suggest that the specific fix for the Druze community needed to be done by amending the law. Rather, he said the fix might be done by passing a separate law or by a government policy decision.

Pressed that the Druze community was unlikely to accept such a deal – a separate law, if it was not a Basic Law, as well as a government policy decision would both have an inferior status – the spokesman said they could connect the Post with Druze community representatives who would endorse this scenario off-record.

No such representatives were produced, leaving question marks again about where Shaked stands on the Jewish Nation-State Law and the Druze community.

Shaked has been very clear about one thing – altering the process for appointing Supreme Court justices to a Knesset-centered process with public hearings as in the US.

There are differences. In the US, sometimes the Senate is from a different party than the president, which is a check on totally partisan appointments that Israel would not have if opposition votes were not required.

But agree or disagree, the proposal itself is straightforward and clear.

The question is how many of these half-baked proposals are election season fluff, versus how many could be real initiatives with the details being filled in after elections?

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